1

Filed 11/16/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

BERNADETTE TANGUILIG, Plaintiff and Respondent,

v. BLOOMINGDALE’ S, INC., Defendant and Appellant. A145283
(San Francisco City and County Super. Ct. No. CGC

- 14

- 541208)

Bernadette Tanguilig, an employee at Bloomingdale’s, Inc. (Bloomingdale’s), filed a representative action on behalf of herself and fellow employees pursuant to the
Labor Code Private Attorney s General Act of 2004 (PAGA) ( Lab. Code
, § 269 8 et seq. ), 1 allegi ng several Labor Code violations by the company . Bloomingdale’s moved to compel arbitration of Tanguilig’s “individual PAGA claim” and stay or dismiss the
remainder of the complaint. The trial court denied the motion. We affirm . Under
Iskanian v. CLS T

ransportation Los Angeles, LLC (2014) 59 Cal.4th 348 ( Iskanian ) and consistent with the Federal Arbitration Act (FAA) (9 U.S.C. et seq.) , a PAGA representative claim is nonwaivable by a plaintiff

- employee via a predispute arbitration agreement with an empl oyer, and a PAGA claim (whether individual or representative) cannot be ordered to arbitration without the state’s con sent

. I. L EGAL F RAMEWORK
Because t his case turns on a proper understanding of PAGA and application of Supreme Court precedent
, we begin with pertinent passages from Iskanian discussing
these issues : “ ‘In September 2003, the Legislature enacted [PAGA]. The Legislature

1 Undesignated statutory references are to the Labor Code.2

declared that adequate financing of labor law enforcement was necessary to achieve maximum compliance with state labor la ws, that staffing levels for labor law enforcement agencies had declined and were unlikely to keep pace with the future growth of the labor market, and that it was therefore in the public interest to allow aggrieved employees, acting as private attorneys g eneral, to recover civil penalties for Labor Code violations, with the understanding that labor law enforcement agencies were to retain primacy over private enforcement efforts. (Stats. 2003, ch. 906, § 1.)

“ ‘Under this legislation, an “ aggrieved employ ee ” may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. (

. . . § 2699, subd. (a).) Of the civil penalties recovered,
75 percent goes to the Labor and Workforce Deve lopment Agency, leaving the remaining
25 percent for the “aggrieved employees.” (

. . . § 2699, subd. (i).) [¶] Before bringing a civil action for statutory penalties, an employee must comply with

. . . section 2699.3. (

. . . § 2699, subd. (a).) That s tatute requires the employee to give written notice of the alleged Labor Code violation to both the employer and the Labor and Workforce Development Agency, and the notice must describe facts and theories supporting the violation. (

. . . § 2699.3, subd. (a).) If the agency notifies the employee and the employer that it does not intend to investigate .

. . , or if the agency fails to respond within 33 days, the employee may then bring a civil action against the employer. (

. . . § 2699.3, subd. (a)(2)(A) .) If the agency decides to investigate, it then has 120 days to do so. If the agency decides not to issue a citation, or does not issue a citation within
158 days after the postmark date of the employee’s notice, the employee may commence
a civil action . (

. . . § 2699.3, subd. (a)(2)(B).)’ ( Arias [ v. S uperior Court (2009) ]
46 Cal.4th [969,] 980

– 981 , fn. omitted.)

“ ‘[T]he judgment in [a PAGA representative] action is binding not only on the named employee plaintiff but also on government agencies and any aggrieved employee

not a party to the proceeding.’ ( [ Id. at p. 985]. ) .

. . ‘An employee plaintiff suing .

. . under the [PAGA] does so as the proxy or agent of the state’ s labor law enforcement agencies

. . . . [¶]

. . . [A] n act ion to recover civil penalties “ is fundamentally a law3

enforcement action designed to protect the public and not to benefit private parties” [citation]. .

. .’ (

Arias, supra, 46 Cal.4 th at p. 986.) [¶]

. . . [¶] A PAGA representative action is therefore a type of qui tam act ion.

. . . The government entity on whose behalf the plaintiff files suit is always the real party in interest in the suit. ” ( Iskanian, supra,
59 Cal.4th at pp. 379

– 382.)
Iskanian holds that a n employee’s right to bring a PAGA action is nonwaivable
under state law ( Iskanian, supra, 59 Cal.4th at pp. 382

– 383 , ci ting Civ. Code, §§ 1668,
3513 ) , a nd this state

- law rule is not preempted by the FAA : “ We conclude that the rule against PAGA wai vers does not frustrate the FAA’ s objectives because

. . . the FAA ai ms to ensure an efficient forum for the resolution of private disputes, whereas a PAGA action is a dispute between an employer and the state [ Labor and Workforce Development ] Agency. ” ( Iskanian
, at p. 384.) “ Nothing in the text or legislative history
of t he FAA nor in the Supreme Court’ s construction of the statute suggests that the FAA was intended to limit the ability of states to enhance their public enforcement capabilities by enlisting willing employees in qui tam actions. Representative actions und er the PAGA, unlike class action suits for damages, do not displace the bilateral arbitration of private disputes between employers and employees over their respective rights and obligations toward each other. Instead, they directly enforce the state’ s in terest in penalizing and deterring e mployers who violate California’ s labor laws.

. . . [¶] .

. . Our FAA holding applies specifically to a state law rule barring p redispute waiver of an employee’ s right to bring an action that can only be brought by the s tate or its representatives, where any resulting judgment is binding on the state and any monetary penalties largely go to state coffers. ” ( Id. at p p. 387

– 388 ; see Sakkab v. Luxottica Retail North America, Inc. (9th Cir. 2015) 803 F.3d 425, 431

– 440 [agree ing that California’s representative action nonwaivability rule is not preempted by the FAA] .)
II

. B ACKGROUND On August 15, 2014, Tanguilig file d a “representative PAGA action

. . . on behalf of the state of California, and on behalf of herself and other current or former employees

. . . , assert[ing] claims for civil penalti es and statutory remedies.” Tanguilig alleged she4

was a current Bloomingdale’s employee and the company failed to provide its
commission

- earning employees with paid rest periods, minimum wage for
noncommission

- producing activities, complete and accurate wage statements, and timely payment of their wages. Bloomingdale’s filed a motio n to compel arbitration. The company produced a copy of the dispute resolution procedure (Agreement) that Tanguilig accepted as a condition of her employment. Th e Agreement required Tanguilig to submit “all employment

- related legal disputes, controversie s or claims” to a four

- step dispute

re solution process that culminat ed in final and binding arbitration. The Agreement prohibited an arbitrator from “consolidat[ing] claims of different [employees] into one (1) proceeding” and from “hear[ing] an arbitrati on as a class or collective action.” 2
Iskanian had been decided by the time Bloomingdale’s filed its motion. However
, Bloomingdale’s argued Iskanian was wrongly decided . It also argued this case wa s distinguishable from Iskanian because Tanguilig , unlik e Iskanian
, had the ability to opt

o ut of the arbitration process

. Bloomingdale’s asked the trial court to “(1) compel the arbitration of Tanguilig’s individual claims; and (2) stay this litigation as required by the [ FAA ] .” In opposition, Tanguilig argued she had asserted no individual claims ; a
pre dispute waiver of representative PAGA claims was unenforceable under Iskanian ;

2 W e note a distinction between the “representative action waiver” discussed in Iskanian and the Agreement. In Iskanian , the arbitration agreement expressly provided that the parties would not “assert class action or representative action claims against the other in arbitration or otherwise ,” including in court. ( Iskanian, supra, 59 Cal.4th at p p

. 360

– 361 , italics added .) T he Agreement expressly bars only th e arbitration of collective claims

. However, because the Agreement also requires Tanguilig to submit all employment

- related disputes or controversies to arbitration, the bar on collective arbitration reasonably could be construed as a bar to Tanguilig bri nging a representative claim in any forum. (See AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 336

– 338 [similar arbitration provisions implicitly so construed with respect to class actions and class arbitrations].) The parties implicitly construe t he contract this way because they refer to the Agreement’s “representative action waiver” as if it were substantively equivalent to the waiver at issue in Iskanian . We accept this implicit joint interpretation of the Agreement for purposes of this appeal.5

Iskanian was not distinguishable on the basis of the Agr eement’s opt

- out provision a s Iskanian exempted only certain pos t dispu te waivers; and the representative action waiver
rendered the Agreement unconscionable

. In reply, Bloomingdale’s argued the individual element of Tanguilig’s PAGA claim was subject to arbitration and , even if the individual element was not arbitrable, the representative action waiver was enforceable. Bloomingdale’s asked the court to “compel [Tanguilig’s] individual PAGA claim to arbitration, ” or “[i]f the Court concludes that the PAGA claim cannot be brought on an individual basis,

. . . [to] dismiss the Complaint.” The court denied the motion to compel, rul ing the representative action waiver
was unenforceable under Iskanian despite the existence of an opt

- out procedure in the Agreement. Bloomingdale’s appealed.
I I I. D ISCUSSION On appeal, Bloom ingdale’s no longer argues Is kanian is distinguishable based on the opt

- out provision

. Inst ead, it argues that the case was wrongly decided or , if Iskanian correctly ruled that a representative action waiver is unenforceable despite the FAA
, that Tanguili g sho uld have be en required to arbitrate the individual element of her PAGA
claim. This appeal presents questions of law that we review de novo. ( Franco v. Arakelian Enterprises, Inc. (2015) 234 Cal.App.4th 947, 955.) We affirm the trial court’s
denial of the motion to compel arbitration in its entirety.
A. Iskanian
We first reject Bloomingdale’s suggestion that we depart from Iskanian either as wrongly decided or as superseded by intervening United States Supreme Court precedent. In its opening brief, Bloomingdale’s relies on pre

- Iskanian United States Supreme
Court decisions and post

- Iskanian federal district court decisions to support its argument
that the case was wrongly decided. Bloomingdale’s fails to recognize that, as an i nferior state court, we are bound to follow the California Supreme Court’s holding in Iskanian under the doctrine of stare decisis. ( Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.) More specifically, in the absence of a subsequent c ontrary decision6

of the United States Supreme Court
, we are bound by the California Supreme Court’s holding on the issue of federal law that Bloomingdale’s contends was wrongly decided in
Iskanian (i.e., FAA does not preempt California ’s bar against compel led waiver of a PAGA representative action). (See People v. Neer (1986) 177 Cal.App.3d 991, 999 .) Furthermore, we are bound by the Iskanian court’s interpretation of the p re

- Iskanian United States Supreme Court decisions cited by Bloomingdale’s

. Finally, we note that
the Ninth Circuit has ruled that Iskanian correctly decided the federal question, thus superseding conflicting prior federal district court decisions cited by Bloomingdale’s

. 3 (See Sakkab v. Luxottica Retail North America, Inc. , supr a, 803 F.3d at p. 427.) In sum,

w e agree with other California Courts of Appeal that we are bound to follow Iskanian ’s holding s that representative action waivers are unenforceable under state law and that this rule is not preempted by the FAA. (See , e.g ., Williams v. Superior Court (2015) 237 Cal.App.4th 642, 647, fn. 3; Securitas Security Services USA, Inc. v. Superior Court (2015) 234 Cal.App.4th 1109, 1121; Franco v. Arakelian Enterprises, Inc. , supra, 234 Cal.App.4th at p. 956; see also Miranda v. An derson Enterprises, Inc. (2015)
241 Cal.App.4th 196, 200 , 203 [reversing dismissal of representative action claim in light
of Iskanian ; discussion of issue unpublished].) In its reply brief, Bloomingdale’s argues that Iskanian is no longer good law in lig ht of DIRECTV, Inc. v. Imburgia (2015)

___ U.S. ___ [ 136 S.Ct. 463 ] ( DIRECTV ),
which was decided after enforcement of the Iskanian rule in the above

- cited California
decisions. We are unpersuaded that DIREC TV provides grounds for a departure from
Iskanian

. In DIRECTV

, our colleagues in the Second Appellate District had held a binding arbitration provision in a customer service agreement that includ ed a class action prohibition was unen forceable under California law. ( DIRECTV , at p. 4 66.) The agreement a t issue provided that “if the ‘ law of your state ’ makes the waiver of class

3 In any event, federal district court decisions not binding authority in this court even on questions of federal law. (See Karuk Tribe of Northern California v. California Regional Water Quality Control Bd. North Coast Region (2010) 183 Cal.App.4th 330, 352.)7

arbitration unenforceable, then this entire arbitration provision ‘ is unenforceable. ’ ” ( Ibid. ) At the time the California plaintiffs entered into t heir agreement with DIRECTV,
class

- arbitration waivers were unenforceable under state law pursuant to Discover Bank v. Superior Court (20 05 ) 36 Cal.4th 148

. The U nited S tates Supreme Court subsequently
held the Discover Bank rule was pree mpted by the FAA

. ( A T &T Mobility LLC v. Concepcion , supra, 563 U.S. at p. 352 .) The Second District had reasoned that F A A preempt ion of the Discover Bank rule did not change the result in the plaintiffs’ controversy with DIRECTV because the parties were free to refer in the contract to California law as it wou ld have been absent federal pre emption and the court so construed the contract

. ( DIRECTV , at p. 467.) The Supreme Court reversed, holding that
the Second District’s interpretation of the phrase “ ‘ law of your state ’ ” related only to arbitration agreements, and therefore did not place arbitration contracts “ ‘ on equal footing with all other contracts ’ ” and consequently did not give “ ‘ due regard .

. . to the federal policy favoring arbitration. ’ ” ( Id. at p. 471 .)
DIRECTV decided a na rrow issue: whether, consistent with the FAA, a state court may construe “state law” in an arbitration agreement as referring to state law as it would
be without FAA preempt ion

. ( DIRECTV , supra, 136 S.Ct. at pp. 466

– 467.) The Supreme Court held such a reading of the contract was contrary to the FAA be cause there
was no evidence the state courts would interpret the phrase in th e same manner when interpreting language in non arbitration contracts. This disparate treatment of arbitration provisions violat ed the terms of the FAA’s savings clause (9 U.S.C. § 2)

. ( DIRECTV
, at
pp. 468

– 471.) In short, DIRECTV decided an issue that is not pertinent to the case before

us. Moreover, DIRECTV dealt only with arbitration of private damage claims
, and not enforcement of civil penalties on behalf of the state. A post

- DIRECTV decision of the
Ninth Circuit continues to regard Iskanian as good law
, holding that a PAGA waiver contained in Uber’s agreements with its drivers i s invalid

. ( M o hamed v. Uber Technologies, Inc. (2016) 836 F.3d 1102 , 1113

– 1114 .) We find no application of
DIRECTV to the case before us

.8

Bloomingdale’s argues DIRECTV nevertheless undermines Iskanian because
DIRECTV takes a hard look at whether a state rule places arbitration agreements on an equal footing with other contracts (see DIRECTV, supra, 136 S.Ct. at pp. 468

– 471),
whereas Iskanian , in Bloomingdale’s words, “failed to look beyond whether its rule is ‘general ’ in name only.” This argument is unpersuasive. Bloomingdale’s erroneously
identifies “the Iskanian rule” as the substantive requirement that a contract ensure “the availability of the right to recover civil penalties on behalf of other employees.” For the purpose of applying the FAA’s savings clause ( i .e., of comparing how state courts treat
arbitration contracts versus other contracts ), the relevant state

- law rule is the principle of
contract law applied in Iskanian : the state

- law bar against contract ual waiver s of statutory rights , which is codified in Civil Code sections 16 68 and 3513. ( Iskanian,

supra, 59 Cal.4th at pp. 382

– 383.) Bloomingdale’s does not and cannot dispute that this legal principle is generally applied to contracts by the Californi a courts. (See 1 Witkin, Summary of Cal. Law (10th ed. 2005 & 2016 supp. ) Contracts, §§ 679

– 684 ; see also
Sakkab v. Luxottica Retail North America, Inc. , supra, 803 F.3d at pp. 432

– 433 [“ Iskanian r ule is a g round for the r evocation of any c ontract” (capitalization omitted) ] .)
W e conclude that Iskanian definitively resolves the arbitrability of the representative claim . The representative action waiver in the Agreement is unenforceable
under state law and this California rule is not preempted by th e FAA. Tanguilig’s purported waiver of her right to bring a representative PAGA action is unenforceable. 4

4 We note, however, that Tanguilig’s action seeks not only civil penalties recoverable in a PAGA action, but also statutory penalties that are not recoverable in a PAGA action. As the Iskanian court explained
, “ [C] ivil penalties recover[able] on behalf of the state under the PAGA are distinct from the statutory damages to which employees may be entitled in their individual capacities. ” ( Iskanian, supra, 59 Cal.4th at p. 381 , italics added ; see Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 377

– 378; Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114

. ) Iskanian ’s prohibition on representative action waivers applies only to a representative action under PAGA seeking recovery of civil penalties (“an actio n that can only be brought by the state or its representatives”) where the state is the real party in interest. ( Iskanian, supra, 59 Cal.4th at p. 3 88.) Bloomingdale’s raised this issue in the trial court and suggested that Tanguilig’s claims for statuto ry penalties should be arbitrated. In9

B. Individual PAGA Claim Bloomingdale’s argues that, even if we follow Iskanian and hold the representative action waiver unenforceable, we should compel arbitration of “the individual portion of Tanguilig’s PAGA claim” and stay “the representative portion” pending completion of arbitration. Tanguilig responds that no individual caus e of action
exists under PAGA and , even if it did
, her claim is by nature representative and cannot be split into indi vidual and representative components

. It is less than clear whether an “ individual ” PAGA cause of action is cognizable
, even in a judicia l forum

. Permitting pursuit of only individual penalties appears inconsistent with PAGA’s objectives. An action to recover civil penalties “ ‘ “ is fundamentally a law enforcement action designed to protect the public and not to benefit private parties

. ” ’ ” ( Iskanian, supra , 59 Cal.4th at p. 381 .) Iskanian addressed the possibility of an individual PAGA claim as follows: “[The employer] argues that the arbitration agreement at issue here prohibits only representative claims, not individual
PAGA claims for Labor Code violations that an employee suffered. Iskanian contends that the PAGA, which authorizes an aggrieved employee to file a claim ‘ on behalf of
himself or herself and ot her current or former employees’ (§ 2699, subd. (a), italics added), does not permit an employee to file an individual claim. (Compare Reyes v. Macy’ s, Inc. (2011) 202 Cal.App.4th 1119, 1123

– 1124 [agreeing with Iskanian’ s position] with Quevedo v. Macy’ s, Inc . (C.D.Cal. 2011) 798 F.Supp.2d 1122, 1141

– 1142 [an employee may bring an individual PAGA action and waive the right to bring it on behalf of other employees].)” ( Iskanian, supra, 59 Cal.4th at pp. 383

– 384.) 5

response, Tanguilig disclaimed any intention to seek non

- PAGA remedies. Because the issue is not discussed in the parties’ appellate briefs, we assume the issue was resolved by Tanguilig’s concession.

5 At least two other appellate courts have followed Reyes and concluded that “a single representative PAGA claim cannot be split into an arbitrable individual claim and a nonarbitrable representative claim. ” ( Williams v. Superior Court , supra, 237 Cal.App.4th at p. 649 ; see Perez v. U

- Haul Co. of California (2016 ) 3 Cal.App.5th 408, 4 2 1 [ employer may not force employee to s plit PAGA claim into individual and10

The Iskanian court observed that “ ‘ [A]ssuming it is authorized, a single

- claimant
arbitration under the PAGA for i ndividual penalties will not result in the penalties contemplated under the PAGA to punish and deter employer practices that violate the rights of numerous employees under the Labor Code. That plaintiff and other employees might be able to bring individua l claims for Labor Code violations in separate arbitrations does not serve the purpose of the PAGA, even if an individual claim has collateral estoppel effects. (

Arias [ v. Superior Court ] , supra, 46 Cal.4th at pp. 985

– 987.) Other employees would still ha ve to assert their claims in individual proceedings.’ ( Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 502, fn. omitted.)” ( Iskanian, supra,
59 Cal.4th at p. 384 .) Thus, w hile assuming the possibility of such a claim, t he Iskanian

c ourt did not directly decide whether an “individual PAGA claim” (i.e., a PAGA claim brought solely on behalf of the plaintiff) is cognizable.
We need not decide this question either , since w e conclude that, regardless of
whether an individual PAGA cause of action is c ognizable, a PAGA plaintiff’s request for civil penalties on behalf of himself or herself is not subject to arbitration under a private arbitration agreement between the plaintiff and his or her employer . This is because the real party in interest in a PA GA suit, the state, has not agreed to arbitrate the
claim. ( S ee Iskanian, supra , 59 Cal.4th at p. 382 [ “[ t ] he government entity on whose behalf the plaintiff files suit is always the real party in interest in the suit ” ].) “Simply put, a PAGA claim lies o utside the FAA’ s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship. It is a dispute between an employer and the state , which alleges directly or through its agents

— either the [ Labor and Workforce Deve lopment ] Agency or aggrieved employees

— that the employer has violated the Labor Code

. Through his PAGA claim, Iskanian is seeking to recover civil penalties, 75 percent of which will go to the state’ s coffers

. . . . ‘ [A] ny judgment in a PAGA action is binding on the government

. . . . ’

representative components , with each litigated in a different forum].) Perez declined to decide whether PAGA cla ims are categorically exempted from private arbitration agreements. ( Perez
, at p. 422 .)11

[Citation.] .

. . ‘ [ E ] very PAGA action, whether seeking penalties for Labor Code violations as to only one aggrieved employee

— the plaintiff bringing the action

— or as to other employees as well, is a representative action on behalf of the state .’ ” ( Iskanian,

supra, 59 Cal.4th at pp. 386

– 387 , some italics added .) Because a PAGA plaintiff, whether suing solely on behalf of himself or herself or also on behalf of other employees, acts as a proxy for the state only with the stat e’s acquiescence (see § 2699.3) and seeks civil penalties largely payable to the state via a judgment that will be binding on the state, the PAGA claim cannot be ordered to
arbitration without the state’s consent. The FAA reflects the “ ‘ fundamental principle that arbitration is a matter of contract.’ ” ( AT&T Mobility LLC v. Concepcion, supra,
563 U.S. at p. 339.) “[A] party may not be compelled under the FAA to submit to

. . . arbitration unless there is a contractual basis for concluding that the party agreed to do
so.” ( Stolt

– Nielsen S.A. v. AnimalFeeds Int ’l Corp. (2010) 559 U.S. 662, 684. ) As
Iskanian observed, the United States Supreme Court itself held in a somewhat anal ogous case that an E qual E mployment O pportunity C ommission enforcement action seeking
victim

- spec ific relief can not be ordered to arbitration based on the victim’s arbitration agreement with his or her employe r , relying primarily on the rationale that “the EEOC [i s ] not a party to the arbitration agreement.” ( Iskanian, supra, 59 Cal.4th at p. 386 , citing EE OC v. Waffle House, Inc. (2002) 534 U.S. 279, 289 [“n othing in the [FAA] authorizes a court to compel arbitration of any issues, or by any parties, that are not

a lready covered in the agreement”; FAA “ does not purport to plac e any restriction on a nonparty’s choice of a judicial forum” ] .) We believe that t he same reasoning is applicable to PAGA actions, where the state is the real party in interest. Holding that a PAGA claim , individual or collective, cannot be arbitrated pursuant to a predispute arbitration agreement without the state’s consent does not conflict with the purposes of the FAA

. “ [T] he FAA aims to ensure an efficient forum for the
resol ution of private disputes ” ( Iskanian, at p. 38 4 ), not qui tam citizen actions on behalf of the government for the purposes of enforcing state law ( i d. at p. 385 ). (S ee Valdez v.
Terminix Internat. Co. LP (C.D.Cal. , July 14, 2015 , No. CV 14

- 09748 DDP (Ex) )12

2015 U.S. Dist. L exis 92177 , pp. * 27

– 28. ) [ representative PAGA action cannot be

or dered to arbitration without state’s consent : “ [a] s a matter of logic, if the claim belongs primarily to the state, it should be the state and not the individual defendant that agr ees to waive the judicial forum ” ]; 6 Ridgeway v. Nabors Completion & Prod

. Services (C.D. Cal. 2015) 139 F.Supp.3d 1084, 1094 [following Valdez on this point]; Cobarruviaz v. Maplebear, Inc. (N.D. Cal. 2015) 143 F.Supp.3d 930, 946

– 947 [same] .) We fin d the reasoning of Valdez persuasive. Bloomingdale’s suggests it would be absurd if arbitration of individual Labor
Code claims for statutory penalties and unpaid penalties were permissible as is true under
current law
, 7 but the individual portion of a PA GA representative claim were not arbitrable

. We disagree. With respect to state legislative intent
, we note that the Legislature has provided a variety of enforcement mechani sms for Labor Code
violations

— e.g., individual administrative claims for back wages
, PAGA claims, Labor and Workforce Development Agency actions for civil penalties on behalf of multiple employees
, and prosecutions for criminal misdemeanors (see Dunlap v. Superior Court (2006) 142 Cal.App.4 th 330, 337

– 338 [citing PAGA legislative history])

— and expressly

6 The Valdez court further reasoned: “ I n the PAGA statute, the Legislature has explicitly selected a judicial forum as the default forum. E.g.,

. . . § 2699(e)(1) (‘ [W]henever the Labor and Workforce Development Agency .

. . has discretion to assess a civil penalty, a court is authorized to exercise the same discretion, subject to the same limitations and conditi ons, to assess a civil penalty.’ ) (emphasis added). Thus, both federalism and separation

- of

- powers concerns are at their apex here. Moreover, civil enforcement of state labor laws is a matter of traditional, if not preeminent, state regulation. ” ( Valdez v. Terminix Internat. Co. LP , supra, 2015 U.S. Dist. L exis 92177 at p. *28 .)

7 See Perry v. Thomas (1987) 482 U.S. 483, 492 ( § 229 , permitt ing court actions for unpaid wages despite existence of a private arbitration agreement
, preempted by FAA) ; Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App .4th 1115, 1119

– 1121 ( ordering arbitration of individual non

- PAGA claims raised in putative class action that alleged violations of Labor Code and sought “statutory penalties”); Caliber Bodyworks, Inc. v. Superior Court, supra, 134 Cal.App.4th at p. 378 ( “ an employer is potentially liable for unpaid wages and interest, statutory penalties and civil penalties for many violations of Labor Code wage

- and

- hour provisions”)

.13

provided that PAGA was not intended to displace th e other enforcement options (see
ibid. ; § 2699, subd. (g)(1) [“[n] othing in this part shall operate to limit an employee’s right to pursue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this part”]). Th e Legislature ’s presumed awareness that some of these enforcement actions might be directed to arbitration pursuant to the FAA does not signify that the Legislature expected or intended
all such actions to be subject to arbitration. With respect to federal legislative intent regarding the FAA , Iskanian holds that qui tam actions were never intended to be within

t he amb it of the FAA; thus, preventing arbitration of qui tam

- style PAGA actions without the state’s consent is consistent with the FAA. ( Iskanian, supra, 59 Cal.4th at p. 382.) We see no absurdity in the result that individual claims for unpaid wages and statu tory penalties , but not PAGA claims for civil penalties, might be ordered to arbitration under a private predispute employee

- employer arbitration agreement. Finally, our analysis is not altered by the Iskanian c ourt’s observation that representative actions might better serve PAGA’s purposes than an individual claim for civil penalties

. ( S ee Iskanian, supra, 59 Cal.4th at p. 384 , citing Brown v. Ralphs Grocery Co. , supra, 197 Cal.App.4th at p. 502

. ) Read in its entirety, the Iskanian opinion clearly hold s that the state is the real party in interest in a PAGA claim regardless
of whether the claim is brought in an individ u al or representative capacity. (S ee Iskanian, at pp

. 382 , 386

– 388

. ) The court wrote, “ ‘ [ E ] very PAGA action, whether seeking pena lties for Labor Code violations as to only one aggrieved employee

— the plaintiff bringing the action

— or as to other employees as well, is a representative action
on behalf of the state

. ’ ” ( I d. at p. 387.) For this reason, the FAA, which is primarily

conc erned with private disputes, does not preempt the state

- law bar against a private predispute waiver of a PAGA claim

. ( I d. at pp. 384

– 388.) As Iskanian states, PAGA is fundamentally “a dispute between an employer and the state

. ” ( I d. at p. 386

. ) For the same reason, the right to litigate a PAGA claim in court is not subject to predispute
waiver

— with respect to an “ individual ” or a group claim

— by an individual employee14

pursuant to a private employment arbitration agreement . T h at is, th e claim c annot be ordered to arbitration without the consent of the real party in interest, the state

. IV

. D ISPOSITION The order denying Bloomingdale’s motion to compel arbitration is affirmed. Bloomingdale’s shall be ar Tanguilig’s costs on appeal.

_________________________ BRUINIERS, J.

WE CONCUR:

_________________________ JONES, P. J.

_________________________ SIMONS, J.15

Superior Court of the City and County of San Francisco , No. CGC

- 14

- 541208 , Ernest H. G oldsmith , Judge.

Jackson Lewis
, David S. Bradshaw
, Nathan W. Austin
, Patrick C. Mullin ; and Mich a el C. Christman for Defendant and Appellant.
Cornerstone Law Group , Gordon W. Renneisen
, Harry G. Lewis and Jennifer A. Donnellan for Plaintiff and Resp ondent

.